If someone charged with DWI is denied the opportunity to have a witness observe them after they are arrested then the entire case against him may be dismissed. In North Carolina the cases of State v. Knoll and State v. Hill set for the standard under which a DWI case may be dismissed if proper pre-trial steps are not adhered to. Basically, in order for a case to be dismissed the defense has the burden of showing that the magistrate violated a statute, then that the Defendant suffered irreparable prejudice because of the statutory violation and that the Defendant lost the opportunity to gather evidence on his behalf.
Magistrates are required by statute to follow certain procedures and consider certain factors when deciding when to release someone. If the magistrate fails to follow any of the statutory directives then it may give rise to the case being dismissed, provided that that last two elements are met. The next part of the problem is that the defense has to show that statutory violation caused the Defendant to suffer irreparable prejudice. This part can be more difficult to show depending on the case.
Generally to show irreparable prejudice it has to be shown that evidence or testimony was lost that would have been helpful in the defense, that the evidence would have been significant, and that the evidence or testimony was lost because of the statutory violations. This determination can be fact specific and may vary from case to case depending on the circumstances. The last thing that has to be show is that the Defendant lost the opportunity to gather evidence on his behalf. The court will generally look to see if during a crucial time period the accused was unable to have family or friends observe him.
The crucial time period is after arrest in which an intoxicated person would exhibit signs of intoxication, if he is in fact intoxicated. A person has a right to gather evidence to defend himself and in an impaired driving case many times the evidence is the physical observation of the accused. This is why someone who is accused of DWI has a right to have someone observed them so they can testify on their behalf. This area of the law can be complicated, so if you have been charged with DWI and believe your pre-trial rights were violated it is important to contact an experienced DWI attorney as soon as possible.
